BF (Eritrea) (by his Litigation Friend, Francesco Jeff) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Lord Justice Bean,Lady Justice Black |
| Judgment Date | 11 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1113 |
| Date | 11 October 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2014/2661; C2/2014/2661(C) |
[2016] EWCA Civ 1113
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Black
Lord Justice Bean
Lord Justice Burnett
Case No: C2/2014/2661; C2/2014/2661(C)
The Queen on the Application of
Mr Chris Buttler (instructed by Scott Moncrieff & Associates Solicitors) appeared on behalf of the Appellant
Ms Catherine Rowlands (instructed by the Government Legal Department) appeared on behalf of the Respondent
Mr Martin Chamberlain (instructed by the Equality and Human Rights Commission) appeared on behalf of the Intervener
This is an appeal against the order of Upper Tribunal Judge Lane dated 6 August 2014 by which he refused the appellant permission to apply for judicial review. At that hearing the claim was advanced on the basis that the Secretary of State's policy found in chapter 55 of the Enforcement Instructions and Guidance, which enables immigration officers to make initial assessments of a person's age on the basis of their appearance and demeanour, is unlawful. Permission to appeal against that order was granted by Dame Janet Smith on 7 May 2015.
There is a quirk in the rules which governs such applications for permission to appeal which has resulted in a different approach being applied depending upon whether the underlying refusal to grant permission to apply for judicial review was made in the High Court or in the Upper Tribunal. When the refusal is made at an oral hearing by a judge sitting in the High Court, it is possible for the single judge of the Court of Appeal when considering the application for permission simply to grant permission to apply for judicial review and remit it to the High Court for hearing. No such power is available when the proceedings come from the Upper Tribunal. It was for that reason that Dame Janet simply gave permission to appeal. These differences were discussed in the judgment of the Master of the Rolls in NB (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 1050.
It is in those circumstances that the appeal before us is concerned with the question whether Upper Tribunal Judge Lane was wrong in all the circumstances to refuse permission to apply for judicial review. In the event that we were to conclude that he should have granted permission to apply for judicial review, by then virtue of section 16(8) of the Tribunals, Courts and Enforcement Act 2007 we would have power to decide the judicial review claim ourselves (again, see the discussion in NB at paragraphs 13 and then 23 to 25). In this case there would be a fundamental difficulty in our doing so. The respondent Secretary of State, given the stage reached in the proceedings below, has not filed any evidence. It would be necessary for the Secretary of State to do so to deal with the claim and in particular respond to the detailed evidence that has been filed in support. For that reason the parties have proceeded on the basis that if the appeal succeeds we should grant permission to apply for judicial review and remit the case for hearing to the Upper Tribunal.
For reasons which I will elaborate in relatively short order, my conclusion is that the claim which the appellant wishes to advance in judicial review proceedings is indeed arguable and has prospects of success. The arguments advanced by Mr Buttler on the appellant's behalf, supported and amplified by Mr Chamberlain QC intervening on behalf of the Equality and Human Rights Commission, may or may not find favour in due course when fully argued out in the face of such evidence as is then before the court. Ms Rowlands on behalf of the Home Secretary has advanced serous arguments in response both in writing and orally this morning, but I am unable at this stage to say that they will necessarily prevail.
The appellant is an Eritrean national who arrived in the United Kingdom from Calais on 11 March 2014. He said to immigration officials that he had been born on 15 February 1998. If that were true, he would have been a child. The immigration officer concerned at that time approached her initial assessment of the appellant's age by applying chapter 55.9.3.1 of the enforcement instructions to which I have referred. The effect of that guidance is that the Home Office will accept at face value that somebody is under 18 if he asserts that to be the case unless one of four circumstances is established. They are:
"A. There is credible and clear documentary evidence that they are 18 or over.
B. A Merton compliant age assessment by a local authority is available stating that they are 18years of age or over.
C. Their physical appearance / demeanour very strongly suggests that they are significantly over 18 year of age and no other credible evidence exists to the contrary.
D. The individual:
• prior to detention, gave a date of birth that would make them an adult and/or stated they were an adult; and
• only claimed to be a child after a decision had been taken on their asylum claim; and
• only claimed to be a child after they had been detained; and
• has not provided credible and clear documentary evidence proving their claimed age; and
• does not have a Merton compliant age assessment stating they are a child; and
• does not have an unchallenged court finding indicating that they are a child; and
• physical appearance / demeanour very strongly suggests that they are 18 years of age or over."
The reference to Merton and Merton-compliant is a reference to the case of R on the application of B v London Borough of Merton [2003] EWHC 1689 (Admin) and the series of cases which have followed and clarified it. The challenge in these proceedings relates to point C in the quotation.
The immigration officer who dealt with the appellant when he arrived in the United Kingdom considered that his appearance and demeanour very strongly suggested that he was significantly over 18 years of age. There was no other credible evidence which existed to the contrary, it was said. The immigration officer explained why she thought that the appellant was much older, indeed in his mid-twenties. The policy also incorporates a safeguard, namely that the conclusion reached by one immigration officer must be vouchsafed by a second who independently must arrive at the same conclusion. As it happens, not long after that conclusion had been reached, information was received that the appellant had been fingerprinted in Italy on his way from Eritrea to the...
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